Pregnancy/Parental, Court, and Bereavement Leave : NS Labour and Advanced Education, Employment Rights

Leaves from Work

 

This page is about the leaves of absence that the Labour Standards Code says employers must allow employees to take.  The leaves of absence are pregnancy and parental, reservists, compassionate care, critically ill child care, critically ill adult care, crime-related death or disappearance, emergency, sick, bereavement, court, and citizenship ceremony.

These are all unpaid leaves.  During a leave of absence, an employee leaves the job intending to return.  The intent is to provide job protection so employees can take time off from their job for the leave.  Employees can qualify for multiple leaves under the Labour Standards Code.

With certain leaves (pregnancy and parental, reservists’, compassionate care, critically ill child care, critically ill adult care, crime-related child death or disappearance, and emergency), the employer must:

  • allow the employee to keep up, at the employee’s own expense, any benefit plans to which the employee belongs - note the employer must give 10 days’ written notice before the option to keep up employee benefits is no longer in effect
  • accept the employee back to the same position held by the employee immediately before the leave began, or, where that position is not available, in a comparable position with no loss of seniority or benefits when the employee returns from the leave

 


Pregnancy and Parental Leaves

Pregnancy leave is an unpaid leave for pregnant employees. It can last up to 16 weeks. The employee can start the leave up to 16 weeks before the expected date of delivery. She must also take at least one week after the date of delivery. Employees who have worked for an employer for at least one year may qualify for this leave. An employer can require that an employee take an unpaid leave of absence if her pregnancy interferes with her work. There are times when the Human Rights Act or the employee’s contract prevents this.

The Labour Standards Code also allows parents to take parental leave to care for their newborn or newly adopted children. This unpaid leave is up to 77 weeks and is available to every parent that qualifies for it. To qualify for the leave an employee must have worked for the employer for at least one year and must become a parent to the child through birth or adoption.

 

To Take Pregnancy or Parental Leave

An employer can ask for proof of entitlement for pregnancy or parental leave. This can include a certificate from a doctor or adoption worker.

If an employee is taking both pregnancy and parental leaves, the employee must take them one right after the other and not go back to work between the two leaves. In this case, the employee can take up to 77 weeks’ total leave (16 pregnancy and 61 parental).

If an employee is taking parental leave but not pregnancy leave, the employee can take up to 77 weeks’ leave in the time after the child is born or arrives in the home. The employee loses this right if the leave is not taken within 18 months after the child arrives in the home.

If a newly arrived child must go into hospital for more than one week, the employee can return to work and use the rest of the parental leave after the child comes out of hospital.

Employees who take pregnancy and/or parental leave may qualify for maternity benefits and/or parental leave benefits under the federal government’s Employment Insurance program. For more detail on these benefits, contact Service Canada.

FAQs

 

Can an employer end an employee's employment while the employee is on pregnancy or parental leave?

When an employee returns from pregnancy and/or parental leave, the employee must be accepted back into the same position or a comparable one with no loss of seniority or benefits. There are some situations where an employer may not be required to accept the employee back to work. See section 30(2) of the Labour Standards Code.

If an employer did not allow an employee to return from pregnancy/parental leave, the employee could, possibly, make a complaint to the Human Rights Commission as well as to the Labour Standards Division.

 

What if an employee needs pregnancy leave but has been employed for less than one year?

The employee may want to contact the Nova Scotia Human Rights Commission to ask about their rights under the Human Rights Act.

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Reservists Leave

The Labour Standards Code has two types of leaves for Canadian Forces Reservists – a training leave available to all reservists and a deployment leave for reservists who accept a deployment for active service. 

To qualify for the leave, reservists must have been employed with their employer for one year.

 

Training Leave for Reservists

Reservists can take up to 20 days unpaid training leave per year in order to take ongoing annual reservist training.  This means that the reservist does not have to use vacation leave for this training.

The 20 days may be broken up into shorter periods and includes necessary travel time.  An employee on training leave must return to work no later than the next regularly scheduled working day following the training and any related travel time.

The employee must give at least 4 weeks’ notice to the employer that they plan to take a training leave, except in an emergency situation, when they must give as much notice as reasonably possible.

 

Deployment Leave for Reservists

Reservists who are on, or who are preparing for an active deployment, within Canada or overseas can take an unpaid leave from civilian work to fulfill their military commitment to service.

Reservist employees can take deployment leave for a maximum period of service of 18 months within a 3 year period and must return to work within 4 weeks of the end of the service period.   The period of the leave includes the time for training that is necessary for the deployment.  There must be at least one year between each deployment leave.

An employee must give the employer 90 days’ notice of his/her intention to take the leave and 90 days’ notice of his/her intention to return to work from the leave. In an emergency situation, where the full 90 days cannot be provided, an employee needs to give as much notice as is reasonably practical.

 

To Take Reservists Leave

An employer can require an employee to provide a certificate from an official with the Reserves confirming that the employee requires the leave for a period of training or active service. 

 

FAQs

 

Do employees who are on deployment leave earn vacation time?

No. Employees do not earn vacation time while they are on deployment leave.

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Compassionate Care Leave

Compassionate care leave is an unpaid, 28-week leave for employees who need to care for a seriously ill family member (or person like family) who has a high risk of dying within 26 weeks.

To take compassionate care leave, employees must be employed for at least three months with the same employer. Also, they must give their employer as much notice as possible before taking the leave. An employer can ask an employee to provide a medical certificate, from a medical doctor, stating that the employee’s family member is seriously ill. The employee can take up to 28 weeks' leave, which must be taken over a 52 week time frame. The leave can be broken up into several periods of at least one week in duration during the 52 week time frame. The 52 week time frame begins on the first day of the week in which the leave began.

Employees who take a compassionate care leave may qualify for a compassionate care leave benefit under the federal government’s Employment Insurance program.  For more detail on this benefit, please contact Service Canada.

 

FAQs

Who decides whether a family member is sick enough for an employee to take the leave?

It is up to a legally qualified medical practitioner to determine whether the family member has a serious medical condition with a significant risk of dying within 26 weeks. The employee may be required to provide a certificate from the medical practitioner.

Who is considered to be a family member of the employee?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person (related or not) who considers the employee to be like a family member or who is considered by the employee to be like a family member. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.

 

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Critically Ill Child Care Leave

Critically ill child care leave is an unpaid leave that allows an employee to take time off work to provide care and support to a critically ill or injured child (under the age of 18 years old) who is a family member (or person like family). To qualify for this leave, the employee must have worked with the employer for at least three months.  A qualified medical practitioner must issue a medical certificate stating that the child has a critical illness and the period of time for which the child needs care.

The employee can take up to 37 weeks’ leave, which must be taken within a 52-week time frame. The leave can be broken up into several periods of at least one week in duration during this time frame. The 52-week time frame begins on the first day of the week in which the child became critically ill.

In some circumstances, an employee may need further leave, which may be taken if an additional certificate is issued—the total combined leaves must not be more than 37 weeks in the 52-week time frame.

The leave ends when the number of weeks stated in the medical certificate has been taken. If the employee stops providing care to the child, the leave ends at the end of the week in which the employee stops providing care. An employee can choose to return to work earlier by giving at least 14 days’ notice.

Employees who take a critically ill child care leave may qualify for a benefit under the federal government's Employment Insurance program. For more detail on this benefit, contact Service Canada.

To Take Critically Ill Child Care Leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave.  Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible.  The employee must also give the employer a plan setting out how the leave will be taken, since the leave can be broken up into more than one period over the 52 week time frame.  This leave plan can be changed during the leave with the employer’s agreement or by providing the employer with reasonable notice.

The employer can ask in writing for a copy of the medical certificate.

What is the definition of critically ill child?

"Critically ill child" is defined in the federal Employment Insurance Act regulations.  A critically ill child is a person under the age of 18 who has a life-threatening illness or injury.

Who can take critically ill child leave?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person like family: A person (related or not) who considers the critically ill child to be like a close relative, or that the critically ill child considers like a close relative. If the employer requests, the employee must provide a statement confirming this. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.

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Critically Ill Adult Care Leave

Critically ill adult care leave is an unpaid leave that allows an employee to take time off work to provide care and support to a critically ill or injured adult (18 years old or older) who is a family member (or a person like family). To qualify for this leave, the employee must have worked with the employer for at least three months. A qualified medical practitioner must issue a medical certificate stating that the adult has a critical illness and the period for which the adult needs care.

The employee can take up to 16 weeks’ leave, which must be taken within a 52-week time frame. The leave can be broken up into several periods of at least one week in duration during this time frame. The 52-week time frame begins on the first day of the week in which the adult became critically ill.

In some circumstances, an employee may need further leave, which may be taken if an additional certificate is issued—the total combined leaves must not be more than 16 weeks in the 52-week time frame.

The leave ends when the number of weeks stated in the medical certificate has been taken. If the employee stops providing care to the adult, the leave ends at the end of the week in which the employee stops providing care. An employee can choose to return to work earlier by giving at least 14 days’ notice.

Employees who take a critically ill adult leave may qualify for a benefit under the federal government's Employment Insurance program. For more detail on this benefit, contact Service Canada.

To Take Critically Ill Adult Leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave. Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible. The employee must also give the employer a plan setting out how the leave will be taken, since the leave can be broken up into more than one period over the 52-week time frame. This leave plan can be changed during the leave with the employer’s agreement or by providing the employer with reasonable notice.

The employer can ask in writing for a copy of the medical certificate.

What is the definition of critically ill adult?

Critically ill adult is defined in the federal Employment Insurance Act regulations.  A critically ill adult is a person 18 or older who has a life-threatening illness or injury.

Who can take critically ill adult leave?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person like family: A person (related or not) who considers the critically ill adult to be like a close relative, or that the critically ill adult considers like a close relative. If the employer requests, the employee must provide a statement confirming this. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.


What is the difference between critically ill adult leave and compassionate care leave?

A critically ill adult is a person 18 or older who has a life-threatening illness or injury. For compassionate care leave, the family member (of any age) has a serious medical condition with a significant risk of dying within 26 weeks (providing what is likely to be end-of-life care). For instance, an employee may be able to take critically ill adult leave, and then, should the condition of the family member worsen, take compassionate care leave.

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Crime-related Child Death or Disappearance Leave

Crime-related death or disappearance leave is an unpaid leave for parents and guardians who are facing the death or disappearance of their child (under 18 years of age) resulting from a probable crime.   To qualify for the leave, the employee must have worked with the same employer for at least 3 months.  The employee is not entitled to the leave if charged with the crime.

An employee can to take up to 52 consecutive weeks of unpaid leave if their child has disappeared and up to 104 consecutive weeks if their child has died.

Where a missing child is found alive during the 52 week leave period, the employee can continue the leave for another 14 days.  If the child is found dead, the disappearance leave ends immediately and the employee can start 104 weeks of leave related to the death of the child.

Where the death or disappearance no longer seems to be the result of a crime, the employee can continue the leave for another 14 days and the employee must give the employer notice in writing of their return to work as soon as possible.

The employee can end the leave early by giving the employer 14 days’ written notice.

Employees who take a crime-related death or disappearance leave may qualify for income support through a federal government grant. For more information on this grant please contact Service Canada.

 

To Take Crime-related Child Death or Disappearance Leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave.  Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible.

The employee must also give the employer a written plan outlining the period that they will take the leave, which can be changed during the leave period with the employer’s agreement or by giving the employer 4 weeks’ written notice.

The employer can ask for reasonable evidence of the death or disappearance of the child and evidence showing it was likely due to a crime.

Who is considered to be a parent for crime-related death or disappearance leave?

For this leave, a parent is defined as:

  • a parent of a child
  • the spouse of a parent of a child (spouse includes two persons living together in a conjugal relationship for at least one year)
  • a person with whom a child has been placed for the purpose of adoption
  • a guardian or foster parent of a child
  • a person who has the care and custody of a child pursuant to the Children and Family Services Act

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Emergency Leave

Employees are entitled to an unpaid leave if they are unable to work because:

  • a government agency has declared an emergency, or

  • a medical officer of health has issued a directive or order telling an employee to stay off work, or

  • the employee needs to care for a family member (or a person like family) who is affected by one of the emergency situations noted above

 

Emergency Leave FAQ

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Sick Leave

Employees are entitled to receive up to three days, unpaid sick leave each year. This leave may be used to care for an ill parent, child, or family member.  It can also be used for medical, dental, or other similar appointments.

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Bereavement Leave

Employees can take unpaid leave of up to five working days in a row if their spouse, parent, guardian, child / child under their care, grandparent, grandchild, sister, brother, mother-in-law, father-in-law, daughter-in-law, son-in-law, sister-in-law, or brother-in-law dies. 

Employees must give their employers as much notice as possible that they will take this leave.

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Court Leave

Employees can take unpaid leave if they must serve on a jury or the court says that they must appear as a witness. They must give their employer as much notice as possible that they will take court leave.

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Citizenship Ceremony Leave

Employees are entitled to take an unpaid leave of absence of up to one day, or less if the employee chooses, to attend their citizenship ceremony.

If possible, employees must give their employer 14 days' notice that they plan to take the leave.  If this is not possible, they must give as much notice as is reasonably possible.

If the employer asks, the employee must provide evidence that they are attending their citizenship ceremony on a particular day, for example the “Notice to Appear” sent by Citizenship and Immigration Canada.

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Discrimination against an Employee

It is against the law to fire, lay off, or discriminate in any way against an employee who has taken or has said that they intends to take—or if the employer believes the employee may take—a leave of absence that the Labour Standards Code says the employee should be able to take. If a complaint is filed Labour Standards will investigate to determine if:

  • the employer has good reason to fire or suspend the employee for past behavior and can show that the behaviour has not been allowed in the past

  • there is lack of work that the employer could not foresee and avoid

  • the business has stopped operating or the employee’s job is no longer needed and the employer is unable to provide other reasonable employment; the employer must show that they acted in good faith

 

If Labour Standards finds an employee has been discriminated against for having taken a leave or for intending to take a leave, the employer may be ordered to bring the employee back to the job with full back pay dating to the date the employee was fired. If the employee does not wish to go back to the job, Labour Standards may order a reasonable alternative remedy.

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FAQs

What if an employee’s job is no longer available?

Employees must be given a comparable position with the same pay and benefits. There may be some circumstances where an employee’s job is eliminated and the employer does not have a comparable job to give the employee.  In these situations, employers will need to show that the job is gone and that the leave had no impact on the decision to lay-off or terminate the employee’s employment.  When employees are being let go because a job is being eliminated usually they must be given written notice that the job is ending or pay lieu of notice.

Do employees who are on leave earn vacation time?

No. Employees do not earn vacation time while they are on leave.

Does an employer have to give an employee time off to further his/her education? Does an employer have to pay for an employee's education/courses?

The Code does not require an employer to give an employee educational leave. Nor does it require an employer to pay for an employee's education unless there is an agreement between the employer and the employee to do so.

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Questions?

If you have any questions, please contact Labour Standards.

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